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Evidence Case Dicta - Privilege - Practice. Ontario Civilian Police Commission v Moreira
In Ontario Civilian Police Commission v Moreira (Div Court, 2024) the Divisional Court considered a rare application under s.33 of the Public Inquiries Act, here specifically whether particular materials covered by a subpoena were solicitor-client privileged.
Here the court addresses how the parties should practically address privilege issues in their evidence:[2] The applicant has delivered a subpoena seeking documents from the respondent. The respondent has claimed that a few of the documents sought are subject to lawyer client privilege. He therefore objects to producing them.
[3] Both counsel acknowledge that they seek simply a determination of whether the documents are producible or privileged. Although the subject matter of an application by way of a stated case under s. 33 can look like a motion for contempt of court, that is not what is sought in this case.
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[5] The applicant has delivered a substantial affidavit to establish the relevancy of the documents sought. The respondent has expressed concern that the affidavit contains allegations that are denied. He does not wish to be prejudiced by leaving allegations unchallenged.
[6] The judge who hears the application will be assisted by knowing the nature of the allegations. But they are just allegations at this stage. The judge will not be called upon to decide anything other than whether the documents at issue are subject to privilege as claimed.
[7] This proceeding is not to become a form of discovery for the ongoing investigation or inquiry. The respondent will need an affidavit to set out why the documents at issue are privileged. He will have to establish that the documents were communication for the purpose of seeking or receiving legal advice and that they were kept confidential so as not to waive privilege. To that end, it will be more than sufficient for the respondent to say simply that he or the police service denies the allegations raised by the applicant in its affidavit. It is the existence of the allegations, not their truth, that gives context to both the production requests and the claims for privilege.
[8] Cross-examinations, if any, are limited to issues related to the privilege claims. Except with leave of a judge to be obtained at a case conference, no cross-examination is to be undertaken concerning the merits of any allegations being investigated by the applicant even if referred to in its supporting affidavit in this proceeding.
[9] On consent, the respondents may deliver to the court copies of the documents over which they claim privilege. They will be contained in a separate record that is clearly labelled “CONFIDENTIAL application record of the Respondent”. The Confidential application record of the Respondent is hereby sealed and shall not form part of the public record pending a further order fo a judge.
[10] The parties shall make efforts to comply with the court’s guidelines for dealing with confidential and sealed materials concerning electronic filing and presentation.
[11] If possible the parties should agree on a mechanism for counsel for the applicant to see the documents over which privilege is claimed on a “counsel’s eyes only” basis. Perhaps outside counsel will need to be retained to give this efficacy. A judge at a case conference can be asked to assist the parties if they cannot agree on a process to arm the applicant’s counsel with sufficient information to fairly make submissions at the hearing of this proceeding.
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